On March 26 and 27, the Court will hear oral argument in the same-sex marriage cases, Hollingsworth v. Perry (the challenge to California’s Proposition 8) and United States v. Windsor (the challenge to Section 3 of the federal Defense of Marriage Act). The first briefs in the cases will be filed on January 22. In advance of those filings, the blog is publishing a series of posts by Marty Lederman of the Georgetown University Law Center on the Article III questions the Court has asked the parties to address in the two cases. This is the second post in that series.

Pending before the Supreme Court are many petitions in cases challenging the constitutionality of Section 3 of the Defense of Marriage Act. The Court has granted certiorari in only one of those cases, United States v. Windsor — and in Windsor itself the Court has granted only one of the three petitions, that filed by the United States, No. 12-307. (It is holding the petition filed by Ms. Windsor, the prevailing party below, No. 12-63. And it has not yet conferenced — and might have any occasion to conference — the petition recently filed by the Bipartisan Legal Advisory Group of the House of Representatives (BLAG), No. 12-785.)

In addition to the merits question raised in the petition, the Court has asked the parties also to brief and argue two Article III questions:

First, “[w]hether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case.”

Second, “whether the Bipartisan Legal Advisory Group of the United States House of Representatives [BLAG] has Article III standing in this case.”

The Court has appointed Professor Vicki Jackson (my former colleague at DOJ and at Georgetown — and one of the very finest federal courts scholars) as an amicus curiae to argue that the answers to those two questions are “yes” and “no,” respectively. Professor Jackson’s opening brief is due next Thursday, January 24.

In this post, I’ll explain how and why the jurisdictional questions in Windsor arise. And, on the first question added by the Court, I’ll describe briefly the argument that the Court is not deprived of jurisdiction by virtue of the Executive Branch’s agreement with the court below that DOMA Section 3 is unconstitutional. In my next post I’ll speculate about possible arguments that the Court lacks jurisdiction, before moving on to the second added question, about BLAG’s standing, in the post after that.

How the Article III issues arise in Windsor

Before discussing the Article III questions the Court has added to the case, some background is necessary to understand how and why those questions might be relevant.

Windsor is a suit for damages. Plaintiff Edith Windsor married her partner of more than forty years, Thea Spyer, in Canada in 2007. The couple resided in New York; and the federal court of appeals later concluded that New York law recognized Windsor and Spyer’s marriage. When Spyer died in 2009, she left her estate for Windsor’s benefit. As executor of Spyer’s estate, Windsor paid more than $350,000 in federal estate taxes to the Internal Revenue Service. She thereafter filed a refund claim under the federal law providing that federal estate taxes generally do not apply to property passing from a decedent to a “surviving spouse.” If Windsor were a man, she would have received the refund. But the IRS denied the refund claim on the ground that Windsor is not a “spouse” within the meaning of DOMA Section 3, which provides that “[i]n determining the meaning of any Act of Congress, . . . the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife”; thus, Windsor could not be a “surviving spouse” within the meaning of the refund statute. (In denying Windsor’s refund claim, the IRS relied only on DOMA. It did not identify or address any other possible reason she might not be entitled to a refund.)

Windsor sued to recover her taxes paid, claiming that DOMA Section 3 is unconstitutional under the Fifth Amendment.

At that point, the Attorney General notified Congress, pursuant to 28 U.S.C. § 530D, that the Department of Justice would not defend the constitutionality of Section 3 in the Windsor case. “After careful consideration, including a review of my recommendation,” wrote the Attorney General, “the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.” The Attorney General added that he “concur[red] in this determination.”

The Attorney General’s § 530D letter explained, however, that the President had also in­structed executive agencies to continue to comply with Section 3 of DOMA, “consistent with the Executive’s obli­gation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judi­cial branch renders a definitive verdict against the law’s constitutionality.” “This course of action,” the Attorney General wrote, “respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbi­ter of the constitutional claims raised.” The letter also noted that Department of Justice lawyers would take appropriate steps to “pro­vid[e] Congress a full and fair opportunity to partici­pate” in the litigation. (In my initial post, I provided more background on the history and justification for the executive’s “enforce-but-don’t-defend” practice reflected in the Holder letter.)

Following the Attorney General’s § 530D report on DOMA Section 3, the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG), a five-member House leadership group, moved to inter­vene in the district court proceedings to defend the constitutionality of Section 3. BLAG is comprised of the Speaker of the House, the Majority Leader, the Majority Whip, the Minority Leader, and the Minority Whip. The latter two legislative officers (Nancy Pelosi and Steny Hoyer) voted against BLAG’s involvement, but they were outvoted three to two.

In its response to BLAG’s motion, DOJ did not formally oppose BLAG’s intervention, but it argued that the court should grant the motion only to permit BLAG “to present arguments in support of the constitutionality of Section 3 of DOMA, consistent with the Department of Justice’s role in this case as counsel for the United States” — in effect, to allow BLAG to appear as an amicus curiae, rather than as an intervenor with the rights of a party (including the right to appeal). DOJ argued that “Congress’s interest in the constitutional validity of a law does not confer standing to enter an action as a party any more than citizens with a generalized grievance would have standing to do so.”

The magistrate judge granted BLAG’s motion, holding that BLAG was entitled as of right to intervene as a partyunder Federal Rule of Civil Procedure 24(a)(2), and that BLAG had Article III standing to appear as a party.

Subsequently, Windsor moved for summary judgment; and both BLAG and DOJ moved to dismiss the case — even though DOJ also argued that the court should grant Windsor’s motion for summary judgment. The government explained that it was filing its motion to dismiss solely for purposes of ensuring that the court had Article III jurisdiction to enter judgment for or against the United States. The district court denied the motions to dismiss and granted Windsor’s summary judgment motion on the ground that DOMA Section 3 violates the equal protection guarantee of the Fifth Amendment. The court ordered the United States to pay Windsor a judgment in the amount of $363,053, plus interest and costs.

That judgment did not go into effect immediately. A federal statute, 28 U.S.C. § 2414, provides that payment of a final judgment against the United States rendered by a federal district court “shall be made on settlements by the Secretary of the Treasury,” and that “[w]henever the Attorney General determines that no appeal shall be taken from a judgment or that no further review will be sought from a decision affirming the same, he shall so certify and the judgment shall be deemed final.” That is to say, the U.S.’s own appeal, and subsequent petition for certiorari, prevents the judgment from becoming final until the case is resolved.

Both BLAG and the United States appealed the judgment to the U.S. Court of Appeals for the Second Circuit. BLAG moved the court of appeals to strike the government’s notice of appeal and to “realign” the appellate parties to reflect that the United States prevailed in the result it advocated in the district court. The court of appeals denied BLAG’s motion. It explained that “[n]otwithstanding the withdrawal of its advocacy, the United States continues to enforce Section 3 of DOMA, which is indeed why Windsor does not have her money. The constitutionality of the statute will have a considerable impact on many operations of the United States.”

The court of appeals then adopted the U.S.’s argument that DOMA Section 3 is subject to heightened scrutiny, and held that it is unconstitutional, thus affirming the judgment in Ms. Windsor’s favor.

Before the court of appeals had even ruled, both Ms. Windsor and the United States had petitioned for certiorari “before judgment.” On December 7th, the Court granted the government’s petition and held Windsor’s. (The Court accepted the government’s suggestion to treat its petition before judgment as an ordinary petition in light of the court of appeals’ intervening decision.)

The Court also asked the parties to brief and argue the two Article III questions quoted at the top of this post, and appointed Professor Jackson as an amicus curiae to argue that the answers to those two questions are “yes” and “no,” respectively. The Court might have appointed Professor Jackson to argue against jurisdiction on the first added question because of uncertainty whether any party in the case would otherwise argue against the Court’s jurisdiction to hear the United States’s petition. In particular, it is unclear what BLAG’s position will be on that question. In the court of appeals, BLAG argued that the court should dismiss the U.S.’s appeal because “the Department of Justice” lacked standing. (BLAG made a similar suggestion in its response to the U.S. petition in this case, and at the cert. stage in a related case.) But the standing rule upon which it relied in that motion, derived from Deposit Guaranty National Bank v. Roper, is a prudential doctrine, not one that deprives the Court of jurisdiction, as BLAG appeared to concede in note 2 of its reply brief on the motion to dismiss the appeal. (More on the Deposit Guaranty doctrine in my next post.) Moreover, BLAG there did not argue that the United States lacked standing — something it presumably would be reluctant to do, since it purports to “represent[] the government’s interests” in the Windsor case (Motion at 12). Instead, it argued that “DOJ” lacked standing, which is something of a non sequitur: DOJ is not a party to the case — the United States is, and DOJ simply provides the lawyers who appear on behalf of the United States in court. Thus, we likely will not know until BLAG files its Article III brief on February 22 just what BLAG will contend regarding the first of the Court’s added questions and whether, in particular, BLAG and Professor Jackson will be aligned on the question of the Court’s jurisdiction to adjudicate Case No. 12-307.

More recently, BLAG filed its own petition in Windsor, No. 12-785, “so that this Court has a vehicle to reach the question of DOMA’s constitutionality even if it concludes that the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction over DOJ’s petition.” The BLAG petition explains that the constitutionality of DOMA Section 3 is “a question all agree merits this Court’s review and resolution.”

In the remainder of this post, and the next, I address the first of the Court’s added questions, concerning its jurisdiction to adjudicate Windsor. The post after that discusses BLAG’s standing.

What question is the Court asking?

The Court has asked “[w]hether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case.”

The Court’s question does not actually mention Article III, the “case or controversy” requirement, or “standing.” In theory, then, the Court might be asking about its statutory jurisdiction to hear the case. Such a statutory question was, for example, the primary jurisdictional issue debated by the parties, and resolved by the Court, in the very similar case of INS v. Chadha(discussing since-repealed 28 U.S.C. § 1252). But the Court has recently resolved the statutory question definitively. In Camreta v. Greene, the Court held (without dissent on this point) that “[t]he relevant provision [28 U.S.C. § 1254(1)] confers unqualified power on this Court to grant certiorari “upon the petition of any party,” including “petitions brought by litigants who have prevailed, as well as those who have lost, in the court below” (emphasis added by the Court).

It’s fair to assume, therefore, that the Court is asking about its constitutional jurisdiction in Windsor, under Article III, in light of “the Executive Branch’s agreement with the court below that DOMA is unconstitutional.”

Article III, section 2 provides that the “judicial power” of the United States “shall extend to,” among other things, “all cases, in law and equity, arising under [federal law],” and to “controversies to which the United States shall be a party.” Beginning no later than in its Doremus v. Board of Education decision in 1952, the Court has construed Article III’s references to “cases” and “controversies” to impose constitutional limits on the jurisdiction of federal courts. The Court succinctly summarized in Camreta (at page 2028) the basic contours of its contemporary “case or controversy” jurisprudence:

To enforce [the “cases or controversies”] limitation, we demand that litigants demonstrate a “personal stake” in the suit. The party invoking the Court’s authority has such a stake when three conditions are satisfied: The petitioner must show that he has “suffered an injury in fact” that is caused by “the conduct complained of” and that “will be redressed by a favorable decision.” And the opposing party also must have an ongoing interest in the dispute, so that the case features “that concrete adverseness which sharpens the presentation of issues.” To ensure a case remains “fit for federal-court adjudication,” the parties must have the necessary stake not only at the outset of litigation, but throughout its course.

(There is a longstanding debate about whether such limits are a fair reading of Article III, and whether the Court considered such limits as prudential, rather than constitutionally compelled, prior to Doremus. In his famous concurrence in Ashwander v. TVA, for example, Justice Brandeis described principles such as that “[t]he Court will not pass upon the constitutionality of legislation in a friendly, nonadversary, proceeding,” and that “[t]he Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation” as rules the Court had “developed, for its own governance in the cases confessedly within its jurisdiction.” But suffice it to say for present purposes that for the past several decades the Court has treated at least some of these limits as required by Article III.)

The argument in favor of the Court’s Article III jurisdiction

The Court’s question appears to reflect a view of at least some Justices that there is something counterintuitive about a defendant — such as the United States in Windsor — appealing to the Court where not only the plaintiff and the defendant, but also the court below, all agree that the plaintiff should prevail.

Imagine, for example, the following hypothetical: A plaintiff sues a defendant; the parties settle because the defendant agrees that it is liable; the district court approves the settlement and enters judgment accordingly; and then the defendant appeals the judgment to the Supreme Court, asking it to confirm that the settlement was legally required. Whether or not Article III would bar that appeal, such a petition to the Court would certainly raise eyebrows.

And if the Court would refuse to hear that hypothetical case involving a settlement, whether for constitutional reasons or otherwise, why should Windsor be any different?

The United States might offer several responses. First, it could explain that whereas in the settlement hypothetical both parties asked the trial court to enter the judgment, in Windsor DOJ did not affirmatively ask to have a judgment entered against the United States, at least as a formal matter. As I explain below, the only relevant pleading it filed was a motion to dismiss Windsor’s suit, although the prayer for relief in that motion was a conditional one.

Second, DOJ could say that in the settlement hypothetical, the stakes would be very limited and case-specific, dealing solely with a particular settlement that has been reached to the satisfaction of the only parties affected. In that case, therefore, the Court would have little reason to grant cert., whether or not Article III would permit it. In this case, by contrast, the Court’s resolution of the question presented would resolve not only a discrete controversy between the United States and Edith Windsor, but also a much more important dispute about the constitutionality of a federal statute that affects tens of thousands of same-sex couples.

DOJ might also argue that the settlement hypothetical does not fairly reflect the true, less unconditional nature of what occurred in the Windsor case. Even if the agreement between the parties in the district court could be analogized to a settlement, DOJ might say, the truly analogous settlement would not simply be “The United States agrees to pay Windsor $350,000.” Instead, the “settlement” would look something like this:

Defendant United States consists of all three branches, “co-ordinate parts of one government,” see United States v. Providence Journal Co., 485 U.S. at 701, which collectively are represented by lawyers of the executive branch, who have an obligation to advance the interests of all three branches. In this case, at least part of the Legislative branch does not share the executive branch’s view that the tax refund is constitutionally compelled. And the third branch has not yet had an opportunity to weigh in. Accordingly, and in light of the Executive’s view that such payment is legally compelled by the Fifth Amendment, the United States agrees to pay Windsor $350,000; PROVIDED, HOWEVER, that such payment shall be made if and only if the Supreme Court agrees that it is constitutionally required or the appeal is dismissed without Supreme Court review. Cf.Nixon v. Fitzgerald, 457 U.S. 731, 743-44 (1982) (rejecting the argument that an agreement between the parties had mooted the controversy and stripped the Court of jurisdiction where the effective terms of the parties’ agreement turned on how the Court resolved the legal question).

DOJ’s primary argument, however, will likely be to rely upon at least two landmark cases such as this one, involving “executive enforcement but nondefense,” in which the federal government appealed a case to the Court and the Court adjudicated the merits, despite agreement between the government and the injured private parties, and the court below, that the federal statute governing the outcome was unconstitutional. Moreover, in the second of those cases, the Court actually held that the government’s agreement about such unconstitutionality was not a categorical bar to a federal court’s Article III jurisdiction, so long as the court’s resolution of the case would determine the legal relationship between the two parties.

The first of these two precedential cases was United States v. Lovett. Congress had passed a law prohibiting the payment of salary to three government employees. The executive branch ceased paying the employees, who then sued. In the litigation, the government agreed with the employees that the statutory prohibition was unconstitutional. A majority of judges on the Court of Claims also agreed, and that court issued an injunction against the government, from which the United States appealed to the Supreme Court, even though the U.S. argued that the injunction was proper. In its merits brief, the government explained that it had sought review because “important constitutional issues are involved which should be determined by this Court,” and because the amicus representing Congress, “having no independent means of access to the Court, requested that a petition for writs of certiorari be filed.”

At the suggestion of the Department of Justice, Congress appointed its own special counsel, who appeared as amicus curiae in the Court of Claims and in the Supreme Court to defend the constitutionality of the statute. As the United States put it in its brief, it was the congressional amici who were of the view that the judgment below was wrong, and “[t]he legislative branch which they represent is therefore the challenger of the judgments below,” even though the U.S. was the petitioner, and the only government party in the case. (The government also noted that it had added two of the four of the questions presented in its petition at the request of counsel for a House subcommittee.)

The Supreme Court agreed with the employees and the United States that the statute was an unconstitutional bill of attainder. Accordingly, the government paid the employees, something it would not have done if the Court had upheld the statute. It is notable that, although the unusual posture of the case was prominently emphasized in the parties’ submissions, no party, nor any Justice on the Court — not even Justice Frankfurter, who wrote separately to urge the Court to construe the statute to avoid the constitutional question and who had for years been urging the Court to impose more stringent Article III restrictions, see, e.g., Coleman v. Miller — raised any question as to the Court’s jurisdiction or the United States’s standing to petition the Court in Lovett.

The second important precedent isChadha itself. What follows is a bit complex, because there were a bunch of different issues at play in Chadha . . . and because, quite frankly, Chief Justice Burger’s opinion for the Court in Chadha is something of a mess, and difficult to follow. But in order to stay on top of the Article III issues in Windsor, an understanding of Chadha is crucial, since it is likely to be at the heart of the arguments on the Court’s added questions. For those of you not inclined to slog through the details, you can simply fast forward to the last three paragraphs of this post.

Congress had enacted a statute giving the Attorney General (acting through the INS) the authority to suspend the deportation of aliens who had overstayed their student visas, but also made the Attorney General’s suspension decision subject to a so-called “veto” by either house of Congress. Chadha was an alien who had overstayed his visa and thus should have been deported, except that the Attorney General agreed to suspend his deportation pursuant to a finding of “extreme hardship.” The House of Representatives, however, “vetoed” the Attorney General’s suspension decision as to Chadha and five other aliens, and ordered the INS to deport them. Although the executive branch was of the view that the “one-house veto” mechanism was unconstitutional, it went ahead and began to process Chadha’s deportation — that is to say, it enforced the law, just as the executive is enforcing DOMA Section 3. (Indeed, it actually deported the other five aliens whose suspensions were vetoed, none of whom sued to enjoin his deportation.)

Chadha petitioned for review of the adverse administrative action to the U.S. Court of Appeals for the Ninth Circuit (as federal law provided) on the ground that the one-house veto was unconstitutional and that therefore the Attorney General’s suspension of deportation should be made effective. The United States agreed with Chadha on the constitutional question, and on the proper result, in the Ninth Circuit. As in Lovett, the Senate and House appeared as amici to defend the law’s constitutionality. They also argued that “Chadha’s claim presently lacks the necessary adverseness,” and that “since the INS has agreed that section 244(c)(2) is unconstitutional, we should decline to pass on Chadha’s case.” In an opinion written by then-Judge Anthony Kennedy, the court of appeals turned back this jurisdictional argument, reasoning that it “misconceives the adverseness requirement.” It was sufficient, Judge Kennedy explained, that the “real and substantial” controversy between the parties would be resolved by the court’s decision, which “will have real meaning: if we rule for Chadha, he will not be deported; if we uphold section 244(c)(2), the INS will execute its order and deport him.” 634 F.2d at 419. The court of appeals then agreed with the U.S. and Chadha on the merits that the House veto was unconstitutional, and therefore directed the Attorney General “to cease and desist from taking any steps to deport this alien based upon the resolution enacted by the House of Representatives.”

At that point, the House and Senate successfully moved to intervene as parties in the case. After the court of appeals denied a motion for en banc review, the INS appealed the case to the Supreme Court under a then-existing jurisdictional statute, 28 U.S.C. § 1252, which gave “any party” the right of mandatory appeal to the Court from a judgment holding an act of Congress to be unconstitutional. Since the government agreed with the decision of the court of appeals, this was a classic case of “enforce-but-decline-to-defend” in which the government took the necessary steps to guarantee that the Court would have the final word on the constitutional disagreement between the political branches. The House and the Senate then each themselves petitioned for certiorari in Chadha. They also moved to dismiss the government’s appeal, primarily on the ground that because Chadha and the INS took the same position on the constitutionality of the one-House veto, the INS was not an “aggrieved party” for purposes of the statutory right to appeal under Section 1252. The Court granted the congressional petitions, and postponed to the merits briefing the question of whether it was required to dismiss the INS’s appeal.

Following oral argument, supplemental briefing, and a reargument, the Supreme Court famously held in favor of Chadha that the one-house veto was unconstitutional — that is to say, it agreed with the substantive argumentspresented by the executive branch. But before it did so, it also addressed and rejected several preliminary arguments about why it should not reach the merits, including jurisdictional objections to the INS’s appeal. On the statutory argument at the heart of the Senate and House’s motions to dismiss, the Court held that “[w]hen an agency of the United States is a party to a case in which the Act of Congress it administers is held unconstitutional, it is an aggrieved party for purposes of taking an appeal under § 1252,” and that “[t]he agency’s status as an aggrieved party under § 1252 is not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional.” (As mentioned above, no similar question of statutory jurisdiction is at issue in Windsor.)

Neither the House nor the Senate had argued in their motions to dismiss that there was any constitutional jurisdictional bar to the INS’s appeal to the Supreme Court. (The House only hinted at it briefly in its merits brief.) The Court, however, raised and briskly resolved the question sua sponte: “In addition to meeting the statutory requisites of § 1252,” it wrote, “of course, an appeal must present a justiciable case or controversy under Art. III. Such a controversy clearly exists in No. 80-1832 [the INS’s appeal], as in the other two cases, because of the presence of the two Houses of Congress as adverse parties.” 462 U.S. at 931 n.6. Later in its opinion, the Court reiterated this holding: “[F]rom the time of Congress’ formal intervention, . . . the concrete adverseness is beyond doubt. Congress is both a proper party to defend the constitutionality of [the one-house veto law] and a proper petitioner under § 1254(1).” Id. at 939.

It is important to note that no one — not the United States nor Chadha nor the Court — had called into question whether the two houses of Congress could be a “party” in the Chadha case, with their own Article III standing to challenge the court of appeals’ judgment. (Indeed, in his response to the congressional petitions, Solicitor General Lee asked the Court to hold those petitions pending resolution of the INS appeal, but expressly stated that if the Court held it lacked jurisdiction over the INS’s appeal, it “could” grant the Senate and House petitions.) The Court’s Article III holding as to its own jurisdiction, then, was that the requisite “concrete adverseness” was present in light of the presence of another “proper party” in the Supreme Court — namely, “Congress” — and that therefore the Court could consider not only Congress’s petitions, but the INS’s appeal, as well. The Court had no occasion to address directly whether the same would be true in a case, such as Lovett, in which Congress appeared not as a party but as an amicus.

But the Court ended up addressing that question, anyway, in its discussion of another argument the House had raised. The House had proffered an Article III argument, not about the Supreme Court’s own jurisdiction (to which the House did not object on constitutional grounds), but instead about the jurisdiction of the court of appeals to enter its judgment before the House and Senate had intervened in the case. (If the Ninth Circuit lacked jurisdiction, the House argued, its judgment would have to be vacated, and the Supreme Court would then have nothing to review.) The Court’s resolution of that argument is of potential importance to the question raised in Windsor.

The Supreme Court denied the House’s motion to dismiss, rejecting the House’s view that the court of appeals had lacked Article III jurisdiction. It held that even before the House and Senate had entered the case as intervenor parties there was “adequate Art. III adverseness.” “[T]he INS’s agreement with Chadha’s position,” explained the Court, “does not alter the fact that the INS would have deported Chadha absent the Court of Appeals’ judgment.” The Court approved and quoted from then-Judge Kennedy’s explanation that Chadha had “asserted a concrete controversy” because the court of appeals’ decision would “have real meaning: if [it] rule[d] for Chadha, he will not be deported; if [the court of appeals] uph[e]ld § 244(c)(2), the INS will execute its order and deport him.’” Id. at 939-40 (quoting 634 F.2d at 419). Presumably, if that reasoning was sufficient to establish Article III jurisdiction in the court of appeals, it would be sufficient to establish jurisdiction in other Article III courts, as well, including in the Supreme Court.

Finally, the Chadha Court noted that “there may be prudential, as opposed to Art. III, concerns about sanctioning the adjudication of this case in the absence of any participant supporting the validity of [the one-house veto statute].” It explained, however, that “[t]he Court of Appeals properly dispelled any such concerns by inviting and accepting briefs from both Houses of Congress,” even before they intervened as parties. The Court cited historical precedents, including Lovett, in which Congress had appeared as an amicus, rather than as a party.

Not a single Justice in Chadha wrote to suggest any lack of Article III jurisdiction — not even Justice Powell, who wrote to his fellow Justices after conference that “[i]f there were a principled way to avoid [resolving the merits], I would welcome it.”

Windsor shares important characteristics with Lovett and Chadha. As in Chadha, the United States and the plaintiff agree that the injunction in the plaintiff’s favor (here, for reimbursement of estate taxes paid) is the proper disposition. And the Court’s resolution of the question of DOMA’s constitutionality will determine whether the U.S. actually makes such a payment: If the Court affirms the court of appeals, the U.S. will pay Windsor; but if it reverses (i.e., holds that DOMA Section 3 is constitutional), the U.S. will not reimburse her. If that is sufficient for Article III jurisdiction even before there are any adverse parties in the case requesting the opposite outcome (as the Court held was the case in the court of appeals in Chadha), that should settle the “case or controversy” question here.

It is fair to assume that Chadha and Lovett therefore will be at the heart of the government’s argument for why the Court has jurisdiction to adjudicate the United States’s petition in Windsor.

In my next post I’ll venture some ideas about various arguments that Professor Jackson might make in support of the contrary view that the Court lacks Article III jurisdiction.

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

4/20Johnson v. United States Whether possession of a short-barreled shotgun is a violent felony, leading to a longer prison term as a career criminal.

4/21McFadden v. United States A federal prosecutor’s duty to prove that a suspect knew that a substance was an illegal substitute for a banned drug.

4/22Horne v. Department of Agriculture The federal government’s duty to pay raisin growers for an order requiring removal of part of a year’s crop from the market to stabilize prices.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.